ALJDEC - Licensing

2022A-09339-CHC-ROC · Registrar of Contractors · 2023-07-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Barbara Crosby,

COMPLAINANT

v.

Arizona Drying and Restoration LLC

License No. ROC 323191,

RESPONDENT

No. 2022A-09339-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 19, 2023

APPEARANCES: Complainant Barbara Crosby appeared via Google Meet on her own behalf. Registrar of Contractors Investigator Jason Simpson appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Arizona Drying and Restoration LLC (Respondent) is the holder of License No. 323191 issued by the Arizona Registrar of Contractors (Registrar).

On or about August 25, 2021, Barbara Crosby (Complainant) agreed to have Respondent build a personal residence. The contracted price was $374,000.00.

On or about October 14, 2022, the Registrar received a Complaint containing twenty-five items against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Jason Simpson. The jobsite inspection was performed on January 13, 2023.

Investigator Simpson then issued a written directive on or about February 1, 2023, to Respondent that provided as follows:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on February 16, 2022.

. . .

DIRECTIVE REQUIREMENTS

You are directed to remedy the following violations by the appropriate means:

Complaint Item 4: “Back fill is needed around right side of home clean outs”

Investigator’s Observation: This allegation is verified as the responsibility of the respondent. Observed sink hole around sewer laterals. Respondent should make necessary repairs.

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

Complaint Item 5: “All gaps, holes or openings at the siding, eaves or flashing be filled and sealed to help prevent moisture and pest intrusion into the building”

Investigator’s Observation: This allegation is verified as the responsibility of the respondent. Respondent is to make appropriate repairs one time in first year.

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

Complaint Item 7: “Caulking is needed around exterior trim where gaps or cracking is visible.; Excess foam needs removed around trim and framing with finish caulking and paint to match at patio door. ; Touch up paint is needed at the exterior of the building.”

Investigator’s Observation: This allegation is verified as the responsibility of the respondent. Respondent is to make appropriate repairs one time in first year.

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

Complaint Item 8: “The back laundry room exterior door does not effectively seal and daylight is visible when close”

Investigator’s Observation: This allegation is verified as the responsibility of the respondent.

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

Complaint Item 9: “The front door bottom sweep rubs at the threshold. It needs adjustment to the door or corrections to the weatherstripping in order to get a tight seal.”

Investigator’s Observation: This allegation is verified as the responsibility of the respondent. Respondent is to make appropriate repairs one time in first year.

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

Complaint Item 10: “The threshold at the exterior door needs caulked and sealed on Front door, and both back doors”

Investigator’s Observation: This allegation is verified as the responsibility of the respondent. Respondent is to make appropriate repairs one time in first year.

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

Complaint Item 11: “Caulking around all exterior windows where cracking, separation or gaps are visible to help prevent moisture intrusion with paint to follow”

Investigator’s Observation: This allegation is verified as the responsibility of the respondent. Respondent is to make appropriate repairs one time in first year.

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

Complaint Item 13: “Honeycombing was noted at the stem wall around the home (back). This is from not tampering the concrete properly when the foundation forms were in place. These areas need to be filled and trolled smooth with paint to follow”

Investigator’s Observation: This allegation is verified as the responsibility of the respondent.

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

Complaint Item 14: “Back of home cement stoop needs to have dirt filled in. The stoop on RV Garage also needs dirt filled in. Cement stoops are not supported.”

Investigator’s Observation: This allegation is verified as the responsibility of the respondent. Respondent should make the appropriate repairs

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

Complaint Item 17: “The riser conduit at electrical panel needs to be painted to match the home.”

Investigator’s Observation: This allegation is verified as the responsibility of the respondent.

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

Complaint Item 18: “The light fixtures on outside of home are loose. They need to have caulking around the base to help prevent moisture intrusion”

Investigator’s Observation: This allegation is verified as the responsibility of the respondent.

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

Complaint Item 22: “Drip edge flashing needs sealed around perimeter of home where area are pulled away.”

Investigator’s Observation: This allegation is verified as the responsibility of the respondent.

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

(All errors contained in the original).

On March 9, 2023, Investigator Simpson conducted a Compliance Jobsite Inspection. In his notes regarding the same, Investigator Simpson found:

Present for the Complainant:

Present for the Respondent: Dan Rooney

Number of days allowed for corrective work per the Directive: 16

Number of days from issuance of the Directive to this inspection: 20

Compliance Jobsite Inspection General Notes: Respondent did not complete some items per the written directive.

This Compliance Inspection was only to evaluate the current conditions of items requiring corrective work as stated on the Directive. Those items are listed below.

. . .

As stated on Directive: “The RV Garage was built with out an approved permit. The permit was rejected for additional information needed on 4/26/22. Dan Rooney built the RV Garage without an approve permit or any inspection's being done on it. The Florence Building Safety inspector caught it after the fact and an engineer report was requested for the foundation. That was provided several months later, however the permit stills needs an amendment for the electrical, as it was never included on the permit. This still has not been done. It will require an amended permit and inspection for the permit to be finialed. This still has not been done. Dan Rooney keeps telling us it is taken care of. We closed and now find he is not taken care of this at all. This is critical and we need it to be taken care of ASAP. Florence Building Safety 520 866 6442. Permit # PER 2201339.”

Investigator’s Observation from initial inspection: Complainant paid and final inspection were completed by county officials. Respondent stated he would reimburse Complainant for the permit fees during the inspection.

Compliance Inspection Findings for this item: This has been corrected.

As stated on Directive: “Drip edge flashing needs sealed around perimeter of home where area are pulled away.”

Investigator’s Observation from initial inspection: This was not completed during CJSI.

Compliance Inspection Findings for this item: This has NOT been corrected.

As stated on Directive: “All gaps, holes or openings at the siding, eaves or flashing be filled and sealed to help prevent moisture and pest intrusion into the building”

Investigator’s Observation from initial inspection: No work has been complaeted.

Compliance Inspection Findings for this item: This has NOT been corrected. No corrective work has been done.

As stated on Directive: “Caulking around all exterior windows where cracking, separation or gaps are visible to help prevent moisture intrusion with paint to follow”

Investigator’s Observation from initial inspection: Caulking has been done needs touch up paint.

Compliance Inspection Findings for this item: This has NOT been corrected.

As stated on Directive: “Honeycombing was noted at the stem wall around the home (back). This is from not tampering the concrete properly when the foundation forms were in place. These areas need to be filled and trolled smooth with paint to follow”

Investigator’s Observation from initial inspection: Verified work not completed.

Compliance Inspection Findings for this item: This has NOT been corrected.

As stated on Directive: “Drip edge flashing needs sealed around perimeter of home where area are pulled away.”

Investigator’s Observation from initial inspection: Verified piece of trim is separated from home.

Compliance Inspection Findings for this item: This has NOT been corrected.

(All errors contained in the original).

On April 5, 2023, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a); and A.R.S. § 32-1154(A)(22).

On or about April 19, 2023, Respondent e-mailed an Answer to the Registrar.

On or about May 9, 2023, a Notice of Hearing was issued setting a hearing on June 19, 2023 at the Office of Administrative Hearings, an independent state agency. The Notice of Hearing was sent to Respondent at its address and email address of record.

On or about May 9, 2023, the undersigned Administrative Law Judge issued an Order with the Google Meet information and the same was mailed/e-mailed to Respondent at his address of record.

At hearing, Investigator Simpson testified as to the Registrar’s involvement and the above timeline.

Investigator Simpson testified that at the jobsite inspection Respondent agreed to reimburse Complainant for the cost of the permit, however, Respondent failed to remit the same.

Further, Investigator Simpson testified that the flashing was not completed, caulking was not completed, and honeycombing was noted at the stem wall.

Finally, Investigator Simpson testified that because most of the corrective work were punch list items, he believed that the time he gave Respondent to complete the corrective work was sufficient.

Complainant and her husband, John Crosby, testified that the sealing was not completed and caulking was not completed. They testified that while Respondent completed some of the corrective work, they were frustrated that everything was not completed because Respondent has had more than enough time to complete the work.

In addition, the Crosby’s testified that they just heard from Respondent in early June 2023, asking what was left to be completed.

Finally, Complainant was requesting discipline on Respondent’s license.

Although the start of the hearing was delayed 15 minutes, Respondent did not appear through an authorized member, employee, or attorney. Further, Respondent did not request that the hearing be continued. Consequently, Respondent did not present any evidence to defend its license.

Administrative notice was taken of Respondent’s prior License record on July 6, 2023. Such prior License record reflected that Respondent’s License No. 323191 was first issued on January 10, 2019, and reflected that there were two open complaints, one of which was the present complaint.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazzano v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Simpson K. Udall, Arizona Law of Evidence § 5 (1960).

The preponderance of the evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Back fill was needed around the right side of the house; there were gaps at the siding and flashing; caulking was needed at various locations; there was no seal around the laundry room door; the front door bottom sweep rubbed at the threshold; honeycombing was notes at the stem wall; the rise conduit needed painting; and light fixtures were loose. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).

The evidence established Respondent failed to complete the corrective work following the Directive being issued. The tribunal finds that based upon the testimony of Investigator Simpson and Complainant, several items were not completed, namely, the caulking and flashing issues and the honeycombing issue. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 323191 for a period of ten days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be forty (40) days from the date of that certification.

Done this day, July 6, 2023.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Martín Quezada, Director

Registrar of Contractors

Arizona Drying and Restoration LLC

[email redacted]

Barbara Crosby

[email redacted]

By: OAH Staff